Patent Trolls in Europe and the Community Patent

written by Susanne Somersalo, Ph.D., Esq., Patent Attorney at Gearhart Law

The European Patent system has been complicated and expensive: once a European patent is allowed by the European Patent Office (EPO), it needs to be ratified in each individual country. The ratification process includes national fees and in many cases it still requires translation of the claims or the full patent into a number of different languages.

In order to simplify this process, the European Union is in the process of developing a concept of a community patent- a patent that would be valid in each European Union country once the EPO allows the patent. For most, this change is welcome and is expected to make a European patent more desirable and economic.

Not only is the ratification process itself expensive, but it is also expensive to assert one’s rights in Europe. Patent validity and infringement cases have to be decided separately by each national court; the German court decides infringement and validity in Germany, while the Finnish court makes those decisions in Finland. Each country applies their national patent laws to cases in their perspective countries.

Unifying the patent system in all European countries includes establishing a new court system for the patents. The most recent rule proposal for the court system provides that a patent infringement or invalidation case could be initiated in any European country and the case would be decided under one body of law. This sounds great, no more multiple suits for the same issue.

But what if one question could be answered in many different ways depending on where the case was filed? Would the court in Germany rule similarly as a court in Poland, Greece or Portugal? Obviously, some courts have more experience in patent litigation than others.

Fourteen large international companies, including Microsoft, Cisco, Google and Apple are worried about this. Their main concerns are court-shopping and potential court abuse by patent trolls. Patent trolls are companies and individuals who buy patent rights of others merely with an aim to sue others and get compensation for patent infringement. Naturally, patent trolls are interested in big companies who have deep pockets. In the United States, the Eastern District of Texas has become a popular court for patent trolls to sue large companies for alleged infringement. This district court is known for sympathetic juries and quick resolution of cases. Now, the big companies are afraid that the same things will happen in Europe. Patent trolls would find a country whose court is favorable and one decision would then cover all Europe.

Unifying the system may be good when viewed from one side, but bad when viewed from the other side. There are always two sides to a coin.